NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-965

COMMONWEALTH

vs.

SYLVESTER AGYEAH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the 

defendant, Sylvester Agyeah, was convicted of resisting arrest 

in violation of G. L. c. 268, § 32B. The defendant appeals from 

the denial of his motion for a new trial after a nonevidentiary 

hearing. We affirm. 

Background. The defendant is a citizen of Ghana and has 

been a permanent resident of the United States since 2013. The 

present matter stems from an incident that occurred on April 26, 

2018, in Worcester. On that date, members of the Worcester 

Police Department were conducting a "john sting," targeting 

individuals soliciting prostitutes near Loudon Street. At 

approximately 9:30 P.M., officers identified and engaged in a 

struggle with a "john" in the middle of Loudon Street. As the 

officers struggled with the john, the defendant approached the 
2

scene in his motor vehicle, caused a "commotion" by "yelling 

from his vehicle," argued with officers regarding the john's 

arrest, created "a safety issue" for the officers struggling to 

arrest the john, and refused several requests to leave the area 

despite being warned that he would be arrested "for interfering 

with police and disorderly conduct." Despite several warnings, 

the defendant continued to argue with the officers. Thus, the 

officers ordered him to exit his vehicle. The defendant 

complied, but then "used force to pull away from [the officers] 

so that he couldn't be placed into handcuffs," "pushed his body 

back from the car . . . and pulled his arms away from [the 

officers'] grasps." After a struggle, two officers "forcibly 

put [the defendant's] arms behind him," "gain[ed] control of 

him," and placed him in handcuffs.1

The defendant testified at trial and claimed, inter alia, 

that an officer knocked the cell phone that he was using to 

record the incident out of his hand and later took it from him; 

that the officers never asked him to move his vehicle; that he 

could not leave because his vehicle was blocked in by other 

1 The officers were unable to double lock the defendant's 

handcuffs because he was not compliant. Also, when walking the 

defendant to the transport wagon, an officer applied a 

"wristlock" technique because the defendant "was resisting the 

efforts to go to the wagon" while he "continued yelling and 

screaming." Officers testified that the defendant did not 

complain of any injuries.
3

vehicles; that he complied when asked to put his hands behind 

his back; that an officer twisted his handcuffs, causing him 

pain and injury to his wrists; and that one of the officers made 

a disparaging racial remark to him.2

The defendant was charged with disorderly conduct, 

disturbing the peace, resisting arrest, and the common law crime 

of interfering with a police officer. Aware of the defendant's 

status as a permanent resident, trial counsel advised his client 

early in his representation "that a conviction could have 

immigration consequences," but told the defendant that he "was 

not an immigration attorney" and referred him to two local 

immigration lawyers. Following this advice, the defendant spoke 

with an immigration lawyer after his arraignment who advised him 

that "if [he] was convicted, [he] could be prevented from 

applying for United States citizenship for five years."

On May 30, 2019, the day scheduled for trial, the 

Commonwealth offered to dismiss the resisting arrest charge and 

decriminalize the disorderly conduct and disturbing the peace 

charges if the defendant agreed to be found responsible for the 

2 During an August 1, 2022 hearing on the defendant's posttrial 

motion to present expert testimony, appellate defense counsel 

represented that the defendant had filed a civil suit in Federal 

court against the Worcester Police Department. However, that 

matter is not before us. 
4

two civil infractions. The defendant rejected the offer,3 and 

following trial that same day, a jury convicted him of resisting 

arrest and acquitted him of disorderly conduct and disturbing 

the peace.4 The judge sentenced the defendant to one year of 

administrative probation that terminated on May 26, 2020.

The defendant filed a motion for a new trial in June of 

2022, arguing that trial counsel rendered ineffective assistance 

in two areas. First, he argued that trial counsel failed to 

advise him of the immigration consequences of the Commonwealth's 

plea offer compared to that of proceeding to trial. In his 

accompanying affidavit, the defendant averred that trial counsel 

did not explain that if he accepted the Commonwealth's offer, 

there would be "no statutory bar to [his] applying for United 

States citizenship, but that if [he] was convicted of resisting 

arrest, [he] could be barred from applying for five years." 

Second, the defendant argued that trial counsel failed to 

present "important evidence implicating the credibility of 

government witnesses" where the case was a "credibility contest 

3 The defendant does not allege that trial counsel advised him to 

reject the Commonwealth's offer. To the contrary, the trial 

transcript reveals that the judge explained on the record that 

the Commonwealth was "going to dismiss the resisting 

arrest . . . [and] decriminalize the disorderly, disturbing." 

Trial counsel acknowledged the offer, stating, "I explained that 

to my client."

4 The interfering with a police officer charge was dismissed at 

the Commonwealth's request with the defendant's consent.
5

between the police and [the defendant]." The motion judge, who 

was also the trial judge, denied the defendant's motion after a 

nonevidentiary hearing. This appeal followed.

Discussion. "To prevail on a motion for a new trial 

claiming ineffective assistance of counsel, a defendant must 

show that . . . 'behavior of counsel [fell] measurably below 

that which might be expected from an ordinary fallible lawyer,' 

and that counsel's poor performance 'likely deprived the 

defendant of an otherwise available, substantial ground of 

defence.'" Commonwealth v. Millien, 474 Mass. 417, 429-430 

(2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 

(1974). "We review a judge's denial of a motion for a new trial 

for 'a significant error of law or other abuse of discretion,' 

granting 'special deference to the rulings of a motion judge who 

was also the trial judge.'" Commonwealth v. Alcide, 472 Mass. 

150, 158 (2015), quoting Commonwealth v. Forte, 469 Mass. 469, 

488 (2014).

1. Immigration consequences. The defendant asserts that 

trial counsel rendered ineffective assistance by failing to 

inform him that accepting the Commonwealth's offer to dismiss 

the resisting arrest charge and decriminalize the remaining 

charges presented no adverse immigration consequences, while a 

conviction for resisting arrest was "likely to set his 
6

application for citizenship back at least five years." On the 

record before us, the argument is unpersuasive. 

"[D]efense counsel [has] a duty to inform a noncitizen 

client that conviction, whether by plea or by trial, may carry 

adverse immigration consequences." Commonwealth v. Sylvain, 466 

Mass. 422, 436 (2013), quoting Commonwealth v. Marinho, 464 

Mass. 115, 125 (2013). "In determining whether the defendant 

met his burden under the performance prong of the Saferian

standard, we must first address what level of advice [trial] 

counsel [was] constitutionally required to provide the defendant 

given the charges against him."5 Commonwealth v. Henry, 88 Mass. 

App. Ct. 446, 452 (2015). The level of advice required depends 

upon the certainty of risk that the defendant faces. When the 

immigration consequences are "truly clear," then "the duty to 

give correct advice is equally clear." Commonwealth v. Chleikh, 

5 We reject the defendant's contention that the Commonwealth is 

estopped from arguing that he did not meet his burden on the 

"performance prong" of the ineffective assistance test because 

the Commonwealth conceded the issue below. Judicial estoppel 

"precludes a party from asserting a position in one legal 

proceeding that is contrary to a position it had previously 

asserted in another proceeding" (citations omitted). 

Commonwealth v. McGilvery, 74 Mass. App. Ct. 508, 509-510 

(2009). However, the doctrine only applies where the party 

"succeeded in convincing the court to accept its prior position" 

(citation omitted). Id. at 510. Here, the motion judge did not 

accept the Commonwealth's position on the first prong, but 

rather concluded that the defendant failed to demonstrate that 

counsel's performance "fell measurably below that which might be 

expected from an ordinary fallible lawyer."
7

82 Mass. App. Ct. 718, 723 (2012), quoting Padilla v. Kentucky, 

559 U.S. 356, 369 (2010). However, "when the law is not 

succinct and straightforward, . . . a criminal defense attorney 

need do no more than advise a noncitizen client that pending 

criminal charges may carry a risk of adverse immigration 

consequences." Id., quoting Padilla, supra.

Here, it is far from clear that resisting arrest 

constitutes a "crime involving moral turpitude" such that a 

conviction would bar the defendant from applying for citizenship 

for five years for lack of "good moral character." 8 U.S.C. 

§ 1427(a).6 The defendant has not identified any legal 

authority, nor are we aware of any, indicating that resisting 

arrest is a crime involving moral turpitude. Contrast

Commonwealth v. DeJesus, 468 Mass. 174, 180-181 (2014) (relevant 

immigration statute "succinct, clear, and explicit" about 

removal consequences for noncitizens convicted of possession 

with intent to distribute cocaine). Rather, the defendant 

relies on conclusory statements in affidavits unsupported by 

6 8 U.S.C. § 1427(a) requires applicants for naturalization to be 

of "good moral character" for five years preceding the date of 

their application. A person who is convicted of or admits to 

having committed a "crime involving moral turpitude" is 

precluded from being regarded as a person with good moral 

character. See 8 U.S.C. § 1101(f)(3); 8 U.S.C. 

§ 1182(a)(2)(A)(i)(I). 
8

legal authority.7 Contrast Commonwealth v. Balthazar, 86 Mass. 

App. Ct. 438, 442-443 (2014) (defendant cited legal authorities 

indicating larceny and malicious destruction of property are 

crimes involving moral turpitude that would subject defendant to 

"presumptively mandatory deportation"). Where counsel's advice 

to the defendant -- that a conviction could have immigration 

consequences and referring him to two immigration lawyers -- was 

consistent with the requirements of Padilla and its progeny, 

see, e.g., Chleikh, 82 Mass. App. Ct. at 723, the judge did not 

err or abuse his discretion when he found that the defendant 

failed to show the "serious incompetency, inefficiency, or 

inattention of counsel" required to satisfy the first prong of 

the ineffective assistance test.8 Saferian, 366 Mass. at 96. 

7 The defendant's immigration expert, Attorney Valentin, averred 

in an affidavit that "immigration officials would likely 

consider the defendant's conviction for resisting arrest to be a 

'crime involving moral turpitude,'" but acknowledged that 

"[t]here is no case law" analyzing the immigration consequences 

of resisting arrest in violation of G. L. c. 268, § 32B. The 

defendant's other immigration expert, Attorney Harrington,

averred in an affidavit that "in [his] experience," permanent 

residents convicted of resisting arrest are "at risk of being 

denied reentry" to the United States and will not be granted 

citizenship for "at least five years." Consistent with this 

view, in his own affidavit, the defendant averred that an 

immigration lawyer advised him that if convicted he "could be 

prevented from applying for Unites States citizenship for five 

years." The defendant further averred in his affidavit that he 

was "told" by some unnamed source that, because of his 

conviction for resisting arrest, he must wait five years from 

the end of his probation term to apply for citizenship.

8 The defendant's trial counsel averred in an affidavit that he 

advised the defendant that a conviction could have immigration 
9

Even assuming, arguendo, that the defendant satisfied the 

first prong of the Saferian test, we agree with the judge that 

he failed to satisfy the second, "prejudice" prong. In the 

present case, "[h]aving to stand trial, not choosing to waive 

it, is the prejudice alleged." Lafler v. Cooper, 566 U.S. 156, 

163-164 (2012). To establish prejudice in the plea context, 

"the defendant must demonstrate a reasonable probability that 

the prosecution would have made an offer, that the defendant 

would have accepted it, and that the court would have approved 

it." Marinho, 464 Mass. at 129. As evidence that he would have 

accepted the Commonwealth's offer, the defendant relies on his 

statement in his affidavit that he "would never have taken [his] 

chances at trial" if counsel had explained that accepting the 

offer would ensure that he was not barred from applying for 

citizenship for five years. However, the motion judge was 

entitled "to reject as not credible the defendant's selfserving, conclusory affidavit," see Commonwealth v. Grant, 426 

consequences but that he was not an immigration attorney. He 

further averred that he "referred [the defendant] to two local 

attorneys who practice immigration law." The defendant, in his 

affidavit, averred that trial counsel told him that he could not 

advise him of immigration consequences, but "should 

independently seek the advice of an immigration lawyer." The 

defendant further acknowledged in is affidavit that he "did talk 

to an immigration lawyer shortly after [his] arraignment . . . 

[and] was advised that if [he] was convicted, [he] could be 

prevented from applying for United States citizenship for five 

years."
10

Mass. 667, 673 (1998), and here implicitly did so. The 

defendant, having followed counsel's advice and spoken to an 

immigration attorney, knew at the time of the plea offer that if 

he was convicted, his citizenship application could be barred 

for five years. The defendant did not assert that counsel 

advised him not to accept the deal, or that he did not 

understand that a dismissal and decriminalization to civil 

infractions for the remaining charges did not constitute a 

conviction. Accordingly, the defendant has met neither prong of 

the Saferian test, and we cannot conclude that the motion 

judge's determination "falls outside the range of reasonable 

alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 

(2014). 

2. Failure to present evidence implicating the credibility 

of government witnesses. The defendant next contends that trial 

counsel rendered ineffective assistance by failing to present 

certain evidence implicating the credibility of the officers' 

testimony. We disagree. 

"Generally, failure to impeach a witness does not amount to 

ineffective assistance of counsel." Commonwealth v. Norris, 483 

Mass. 681, 687 (2019), quoting Commonwealth v. Fisher, 433 Mass. 

340, 357 (2001). "[A]bsent counsel's failure to pursue some 

obviously powerful form of impeachment available at trial, it is 

speculative to conclude that a different approach to impeachment 
11

would likely have affected the jury's conclusion." Fisher, 

supra. See also Millien, 474 Mass. at 432 (defense 

"substantial" under prejudice prong of Saferian "where we have a 

serious doubt whether the jury verdict would have been the same 

had the defense been presented").

The defendant maintains that counsel could have consulted 

with and presented testimony by an expert on police use of force 

and police procedures to demonstrate that the officers' 

testimony was not credible. The defendant argues that his 

proposed expert, a retired Connecticut police officer who 

reviewed the surveillance video footage of the incident, would 

have been able to discredit the officers' testimony by 

demonstrating that the defendant's vehicle was blocked in and he 

was unable to turn around to leave the area of the john's 

arrest. Even assuming, arguendo, that the defendant's proposed 

expert testimony would have been admissible, counsel's failure 

to introduce it was not prejudicial, because the alleged 

blocking of the defendant's vehicle prior to his arrest would 

not have undermined or contradicted the evidence that he 

resisted arrest. The evidence at trial allowed a jury to 

conclude that, as officers attempted to handcuff the defendant, 

he "used force to pull away from [the officers] so that he 

couldn't be placed into handcuffs," "pushed his body back from 

the car . . . and pulled his arms away from [the officers'] 
12

grasps." See Commonwealth v. Don, 483 Mass. 697, 707 (2019) 

(defendant not prejudiced by counsel's failure "to present 

expert testimony 'disproving' a particular factual scenario that 

was not essential to the Commonwealth's theory of the case"). 

The defendant further contends that counsel was ineffective 

for failing to cross-examine the officers regarding the 

surveillance video footage of the incident or their compliance 

with Worcester police policies. Trial counsel authenticated and 

introduced the surveillance video footage of the incident 

("Exhibit 2") during the defendant's direct examination. 

Putting aside whether trial counsel could have introduced the 

surveillance video footage earlier, such as during crossexamination of the officers,9 the defendant has failed to 

demonstrate with any reasoned argument, as opposed to conclusory 

assertions, how doing so would have influenced the jury's 

conclusion that he resisted arrest. Likewise, the defendant has 

not demonstrated how any alleged violation of Worcester police 

policies -- e.g., by failing to document the seizure of his cell 

phone or file a use of force report for the wristlock technique

-- would have influenced the jury's conclusion that he resisted 

arrest.

9 The judge told trial counsel that he would not allow counsel to 

introduce and authenticate the video footage during crossexamination of the Commonwealth's witnesses.
13

Nor did counsel render ineffective assistance by failing to 

impeach Officer McGrath with a prior inconsistent statement he 

made during a July 25, 2018 hearing on the defendant's traffic 

citation. Officer McGrath testified at the citation hearing 

that he activated his cruiser's siren and lights when he arrived 

behind the defendant's vehicle. At trial, he testified that he 

activated the cruiser's siren, but not the lights. Whether 

Officer McGrath turned on his cruiser's lights when he 

approached the scene was inconsequential and unlikely to have 

influenced the jury's conclusion that the defendant resisted 

arrest. See Fisher 433 Mass. at 357. 

The defendant also argues that trial counsel should have 

introduced a video recording taken by a rear exterior camera of 

the police transport wagon because it demonstrated that he 

appeared to be in pain; that he was cooperative; that officers 

had an opportunity to double lock his handcuffs before loading 

him into the wagon; and that two officers were not displaying 

their police identification. Where the video footage has no 

audio and shows a limited view of officers loading the defendant 

into the wagon after they had already handcuffed him, we are not 

persuaded that playing the video at trial was likely to provide 

a substantial ground of defense to resisting arrest. Saferian, 

366 Mass. at 96. On this record, we cannot say that it was an 

abuse of discretion to deny the motion for a new trial.
14

Likewise, the defendant's argument that counsel was 

ineffective for failing to introduce documentary evidence of his 

injuries is unpersuasive. The medical records are from a 

hospital visit on May 17, 2018, approximately three weeks after 

the defendant's arrest, and the photographs the defendant took 

of his wrists lack date or time stamps.10 Moreover, both 

officers testified that it is common for individuals to 

experience pain while handcuffed and explained that an arrestee 

being noncompliant makes it "impossible" to double lock 

handcuffs to prevent further tightening. In short, we cannot 

conclude that the defendant was deprived of a substantial ground 

of defense, and we have no "serious doubt whether the jury 

10 The only indication of the date each photo was taken is the 

defendant's averment that he took them on May 3, 2018, and May 

14, 2018, several days after his arrest on April 26, 2018.
15

verdict would have been the same" in the absence of counsel's 

claimed failures. Millien, 474 Mass. at 432.11

Order denying motion for a 

new trial affirmed.

By the Court (Neyman, 

Desmond & Smyth, JJ.12),

Clerk

Entered: August 7, 2023.

11 We are likewise unpersuaded by the defendant's argument that 

the judge abused his discretion by denying the motion without 

conducting an evidentiary hearing. The judge is not required to 

conduct an evidentiary hearing unless the defendant raises a 

"substantial issue." Mass. R. Crim. P. 30 (c) (3), as appearing 

in 435 Mass. 1501 (2001). "If, on the papers presented, the 

basis of the motion is not 'credible' or 'persuasive,' an 

evidentiary hearing accomplishes nothing." Commonwealth v. 

Candelario, 446 Mass. 847, 859 (2006), quoting Commonwealth v. 

Goodreau, 442 Mass. 341, 348-349 (2004). For the reasons 

discussed supra, "the judge's finding that the defendant[] . . . 

did not raise a substantial issue is entitled to substantial 

deference, . . . and the judge could properly use his knowledge 

and evaluation of the evidence at trial in determining whether 

to decide the motion for a new trial without an evidentiary 

hearing" (citation omitted). Commonwealth v. Amaral, 482 Mass. 

496, 509 (2019). To the extent that we have not specifically 

addressed subsidiary arguments in the parties' briefs, they have 

been considered, and do not warrant further discussion. See 

Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

12 The panelists are listed in order of seniority.